What qualifies as harassment under FEHA?

What the Law Says

The Fair Employment and Housing Act (FEHA) defines unlawful harassment in Government Code section 12940(j). It prohibits harassment based on protected characteristics and sets the legal standard for when conduct rises to the level of actionable harassment.

Harassment under FEHA occurs when an employee is subjected to unwelcome conduct because of their membership in a protected class — including race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age (40+), or veteran/military status.

The law does not prohibit isolated jokes or minor slights. Instead, it targets conduct that is either 'severe' (e.g., a single incident of sexual assault) or 'pervasive' (e.g., repeated derogatory comments over time) — enough to unreasonably interfere with work performance or create an intimidating, hostile, or offensive work environment.

Importantly, FEHA applies to employers with five or more employees (for most claims), but harassment protections extend to all employees regardless of employer size in some contexts — notably, harassment by supervisors triggers strict liability even if the employer was unaware.

Statutory Text

Harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

— Gov. Code § 12940(j)(4)(A) — Harassment: Sex

Statutory Text

An employer may be held liable for the acts of non-supervisory employees, agents, contractors, or non-employees, under its control, with respect to harassment, if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

— Gov. Code § 12940(j)(3) — Harassment: Employer liability

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